Earlier, Matthew posted Prof. Pommersheim’s new article on the BIA’s fee-to-trust process, which took a broad look at the history of the process and a closer look at its application in South Dakota.

I echo Matthew’s strong recommendation for people to read this article – especially if you encounter the fee-to-trust process in your work.

I was particularly struck by Prof. Pommersheim’s discussion of the amount of land that continues to be taken out of trust.

In my time at the Department of the Interior, we were constantly under pressure to justify the acquisition of land into trust to members of Congress, state and local governments, and the public. In testimony to congressional committees on this issue, DOI officials consistently noted the extraordinary loss of Indian land during the Allotment period as a justification for putting land into trust under the IRA. We also recited the economic and jurisdictional benefits of trust acquisitions. Prof. Pommersheim notes these in his article as well.

But, he also goes further in quantifying the amount of land that continues to move from trust status to fee in this chart:

——————–

Fee-to-Trust / Trust-to-Fee Transactions (2000–2012) (Chart C)165

State

Fee to Trust

Trust to Fee

Count Total

Acres Total

Count Total

Acres Total

Minnesota

3

160.000

7

293.520

North Dakota

0

0.000

31

4,310.910

Montana

30

5,909.622

188

35,972.163

New Mexico

0

0.000

6

1.642

South Dakota

2

1,869.640

160

24,008.420

TOTAL

35

7,939.262

392

64,586.655

———————

Prof. Pommersheim adds:

The results are very surprising because in each state considered, especially South Dakota, there is a net gain of land being placed on the tax rolls as opposed to being taken off the tax rolls. South Dakota’s numbers are particularly revealing in that it appears that at least ten times more [Indian] land has gone onto the tax rolls between 2000 and 2012 than leaving the tax rolls during the same period.

The shadow of Allotment-era policies continues to harm Indian Country, as these data show. Prof. Pomersheim’s table addresses only five states. I’d be very curious to see this information for all trust lands across the country.

Tribal leaders and officials at the Department of the Interior continue to support the restoration of tribal lands through the fee-to-trust process. From 2009 to the end of 2012, the BIA had acquired approximately 200,000 acres in trust – a dramatic increase from the previous 8 years. This work has been criticized by some members of Congress, state and local officials, and others as harmful to state and local governments. This article addresses and/or refutes much of that criticism, especially as it relates to taxes and jurisdictional concerns. (I’ve long thought many of the criticism related jurisdiction and zoning tend to get overblown, as a vast majority of tribal fee-to-trust applications are for lands within, or contiguous to, existing reservations).

The continued loss of trust lands across Indian Country isn’t news. But, Prof. Pommersheim’s work quantifies how efforts to put lands into trust are hindered by the continued erosion of trust lands due to Allotment-era policies. Two steps forward, and one step back.

People who advocate for the protection of Indian lands, and for a strong fee-to-trust program, must emphasize these data. The Indian Reorganization Act’s fee-to-trust process was intended to combat the loss of Indian lands through the policies of the Allotment era. The loss of Indian lands did not end with the Indian Reorganization Act’s passage in 1934, but continues to this day.